VIJAY SETHI vs DISTRICT ANAGERTELEPHONES

FIRST Appeal No. 74/94 by Shri Vijay Sethi, Complainant before the State Commission and First Appeal No. 146/94 by the District Manager Telephones and SDO, Telephones, the Opposite Parties before the State Commission are directed against the order dated 16.12.1993 passed by the Haryana State Commission at Chandigarh allowing the complaint and directing the Opposite Parties to pay a compensation of Rs. 20,000/- along with costs of Rs. 2,000/- to the Complainant. The Complainant seeks enhancement in the quantum of compensation and the Opposite Parties seeks dismissal of the complaint.

SHRI Vijay Sethi is the subscriber of Telephone No. 560707 with STD facility installed at his residence at Kothi No. 200, Sector 6, Panchkula (Haryana). The subscriber is also having another telephone at his business premises with STD facility. Telephone No. 560707 was having dynamic code facility which means that the subscriber is the controller of his own STD and he can use STD whenever he likes and can lock the same to avoid misuse by anyone and for this purpose he has to choose a secret code both for locking and unlocking in his mind not known to anyone except himself. Instead of feeding proper code/digit for locking the STD, admittedly the Complainant used a wrong code for locking the STD, and he made a complaint on 17.10.1992 to the Opposite Parties that the STD facility had wrongly been locked by him by using the wrong code and requested for unlocking the same on payment of relevant charges to be included in the next telephone bill. He requested for prompt action. According to the Complainant inspite of his repeated personal visits and subsequent reminders the STD dynamic code which got locked, however, was not opened and that inaction of the Opposite Parties resulted into business loss and inability to make outstation and overseas calls resulting into a financial loss to the tune of Rs. 2.5 lakhs which was claimed in the complaint and further damages of Rs. 500/- per day from the date of the filing of the complainant till the date STD facility was restored. On being noticed, the Opposite Parties stated that on receipt of the application for opening dynamic code on 17th October, 1992, an advice was issued and the work was executed and completed on 21st October, 1992. The plea in the nutshell is that the tactics adopted by the subscriber was to use the S.T.D. by feeding a code and after using the same for a few days, made the complaint to the Opposite Parties for unlocking the wrong code fed by him in his S.T.D. facility and thus making a false complaint every now and then that his S.T.D. was not unlocked and restored. It is stated in reply to the other paragraphs of the complaint that reminders were received and action was taken. It is denied that the Complainant suffered any loss as alleged or otherwise.

AFTER filing of the complaint, the STD facility was reopened on 20th May, 1993. The State Commission on the basis of material on the record in an elaborate and learned judgment by the President of the State Commission held that the provision of a dynamic code for the STD facility in Electronic Exchanges is now an integral part of the services of telecommunication and any inordinate delay in unlocking the STD dynamic code would be a patent deficiency in the telecommunication services provided to the consumers. The State Commission also found that there has been a grave and inordinate delay in reopening the locked STD dynamic code which the Opposite Parties are bound to do most expeditiously and thus this would be a deficiency in the telecommunication service extended out by the Opposite Parties to the consumers. It was also observed that somewhat callous attitude towards the Complainant and the grave delay consequently merits relief with the consumer jurisdiction. The State Commission expressed that in a situation of the Complainant it is not possible to calculate the compensation with absolute precision and erring on the conservative side, the State Commission quantified the compensation in the round sum of Rs. 20,000/- expressing that it would meet the ends of justice in the present case. The Opposite Parties were directed to tender the aforesaid amount of Rs. 20,000/- along with costs of Rs. 2000/- within one month from the date of the passing of the order.

BOTH the parties are aggrieved of the decision of the State Commission and have filed cross appeals. We heard Shri Vivek Sibal, learned counsel for the Complainant and Shri B.K. Aggarwal, the learned counsel for the Opposite Parties and have gone through the records. The State Commission had posed a question in the opening part of the order as to whether inordinate delay in reopening a locked S.T.D. Dynamic code would be a deficiency in the telecommunication services provided to a "consumer" and rightly answered the question in the affirmative. Mr. B.K. Aggarwal, the learned counsel for the Opposite Parties did not question this conclusion. The provision of a dynamic code to the STD facility of a telephone is an integral part of the telecommunication services extended out to a subscriber by the Opposite Parties. Dynamic code locking facility is a valuable part of the services hired by a subscriber and if a subscriber accidentally or by inadvertence or even negligently locks the STD facility, then it is the duty of the Opposite Parties to unlock the STD dynamic code on payment of the requisite charges. This is provided in the rules of the Opposite Parties. Any inordinate delay in unlocking the dynamic facility would be a deficiency in the service of the Opposite Parties. We uphold the reasoning and conclusion of the State Commission in this regard. We have reappraised the material on the record evidenced by the copies of the letters written by the Complainant to the Opposite Parties and the copies of the extracts filed by the Opposite Parties - SDO (Phones), Panchkula. The letters/documents give the advice notes with the date for re-opening dynamic STD code of the Complainant''s telephone. Whether it was actually done or not there is no evidence placed by the Opposite Parties on record. We, therefore, uphold the finding of the State Commission that it was done only on 20th May, 1993.

THE only question that remains to be answered is the quantum of compensation. Section 14(1)(d) of the Consumer Protection Act, 1986 lays down the reliefs that can be granted by the Consumer Fora, when there is a finding of deficiency in service. It empowers the Consumer Fora to direct to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party. Compensation can be awarded to a consumer only in respect of any loss or injury found to have been suffered by him due to the negligence of the Opposite Parties. The compensation is just equivalent of the loss that is suffered by a party. The award of compensation by a Redressal Forum established under the Act has to be made on well-recognised principles governing the quantification of loss or injury suffered, to assess the compensation and not arbitrarily. The Complainant has to establish by cogent material or convincing evidence the loss suffered by him. It may be noticed that the said telephone is at the residence of the Complainant and he has another telephone at his business premises. During the period the telephone was without STD, no case has been made out by the Complainant that he ever booked any trunk-call or demand trunk call facility which is the alternative facility provided by the Opposite Parties and those calls were not made available and therefore the Complainant suffered any loss. If the Complainant''s business was mostly dependant on telephone he could have made use of trunk-call facilities, demand trunk-call facilities etc. Even the statement of account filed by the complainant in his affidavit about the gross sales for 8 months from October, 1991 to May, 1992 and October, 1992 to May, 1993 does not establish that there was any loss because of the non-availability of STD facility at the residence of the Complainant. The figure of November, 1991 shows the gross sale of 3,76,993.00 and that of November, 1992 - 3,74,144.50. The other figures of December, 1992 to May, 1993 are varying figures and they are in consonance with the variation in the other 8 months figure from October, 1991 to May, 1992. Thus, those figures could not form the basis of quantification of the alleged loss suffered or for awarding the compensation of Rs. 20,000/- to the Complainant. The State Commission has not quantified the alleged loss suffered by the Complainant. We have also found the same difficulty in assessing the quantum of loss and therefore a token compensation/damages of Rs. 10,000/- for the loss suffered and for the inconvenience caused to the Complainant for being deprived of the STD facility would meet the ends of justice.

THE appeal of Complainant is dismissed and the appeal of the Opposite Parties is partly allowed. The parties shall bear their own costs in these two appeals.